The case arose when CYC first rejected a camp booking from WayOut, a Victorian youth suicide prevention group which supports homosexual young people in rural areas.

It seems from the judge's findings that CYC did not handle the issue well. They should have anticipated that a complaint of this nature was likely to arise – based on many cases in other jurisdictions – yet the person who handled the booking did not keep adequate records of his conversation with the WayOut representative. CYC also had inadequate policies about who should be allowed to book the site. Futhermore although the campsite had refused to accept a booking from this group on the basis of beliefs about sexual practice outside marriage, it did not have a policy of informing other groups who booked the site that it was unacceptable for unmarried people to have sex on the site, or that groups which used the site should not promote sex outside marriage while using the site. Thus the judge concluded: "Their conduct in respect of bookings generally, and their requirements, or lack of them, in respect of the conduct of attendees at the adventure resort to which I have already referred is in stark opposition to such a contention.” [i.e. a contention that their religious doctrines compelled them to reject a booking from a group which affirmed sex outside marriage].

It also seems to have been a poor choice for CYC to employ a barrister closely connected with the Brethren church. In contrast CCHS was represented by a team from a well-resourced city law firm, led by Debbie Mortimer, who also represented the Islamic Council of Victoria in their religious vilification complaint against Catch the Fire.

It is quite striking in Judge Hampel's findings that she preferred the complainaint's evidence concerning the facts of the case, on almost every point. She also severely criticized the CYC's expert witness, Canon Peter Adam of Ridley College, while accepting the expert evidence of Dr Rufus Black of Ormond College given for CCHS.

The case was made out under the Victoria's 1995 Equal Opportunity law. A new EO law has been passed by parliament which will come into effect in 2011, so the future application of Equal Opportunity laws in Victoria will be judged by different criteria from this one. In the new law, the basis for religious exceptions has been broadened somewhat in some respects, and narrowed in others. For example, exceptions are no longer on the basis of the 'doctrine of the religion' alone, but also can be on the basis of the 'principles' or 'beliefs' of the religion.

Even though the Victorian Civil and Administrative Tribunal is an inferior court, some benchmarks were established by Judge Hampel which could affect other cases.

Judge Hampel found that, based on Victoria's Human Rights Charter, principles protecting individuals from discrimination should be interpreted broadly, but exceptions (e.g. for consideration of religious freedom) should be interpreted narrowly. This has the effect, when balancing equality with religious freedom, that equality considerations have the stronger position.

Working from this position, Judge Hampel made findings on a number of issues which are significant for all Victorian religious bodies that offer services to the public, e.g.:

Judge Hampel argued that if a body offers substantial services with a secular component, this weakens any claim to be considered a body established for religious purposes, and the body is correspondingly less protected from discrimination claims by the exemptions in Equal Opportunity legislation.

Judge Hampel found that not everything in scripture is part of Christian doctrine. She found, for example, that Biblical statements concerning same-sex relations reflected prevailing cultural beliefs at the time, and are not part of doctrine. More generally, the 'absence of any reference to marriage, sexual relationships or homosexualty in the creeds or declarations of faith which Christians including the Christian Brethren are asked to affirm as a fundamental article of their faith demonstrates that the Christian Brethren beliefs about marriage, sexual relationships or homosexuality are not fundamental doctrines of the religion.' She is saying that just because something is in the Bible doesn't make it Christian doctrine. To be part of doctrine, it should be explicitly in the creeds or doctrinal statements of a religious group. On this basis, and the evidence given to her from Dr Black, she ruled that opposition to homosexual practice is not part of Christian doctrine.

The key word 'conforms' was important in Judge Hampel's reasoning. Acts which 'conform' to the doctrines of a religion have some protection under the law. However Judge Hampel accepted an argument put by the Equal Opportunity Commission that 'conforms' must be interpreted narrowly. Thus she ruled: 'conforms imports a sense that the doctrine requires, obliges or dictates that the person act in a particular way when confronted by the circumstances which resulted in their acting in the way they did.' In other words, someone is only protected by religious exceptions if their doctrine compels them to act in a particular way.

Here are a few general comments about these findings:

It does seem that the Victorian Human Rights Charter has had the effect of weakening the value of religious freedom provisions in Victorian Equal Opportunity law.

It is concerning that a secular tribunal is making rulings on what constitutes Christian doctrine, not just for an individual body, but for Christians in general. That VCAT will make theological rulings on doctrine is a inevitable result of the way the EO law is written, and we are likely to see more examples of this in the future. (In the case of the Islamic Council of Victoria against Catch the Fire, a VCAT judge also made theological rulings, in respect of Islamic doctrine.)

The role of the Uniting Church expert in this case is significant: as the respondent's expert, Canon Peter Adam, was rejected by the Judge, the views of Dr Black stood. Some might take the view that the Tribunal has turned Uniting Church theology into a ruling which will bind the adherents of other Christian sects. It is a pity therefore that other denominations did not make submissions to the Tribunal on this issue.

This ruling illustrates how denominations which have less detailed doctrinal statements are disadvantaged under by Equal Opportunity laws. The Catholic church, which has highly detailed declarations of doctrine should do much better in VCAT, because so much more will be included in what is obligatory for its followers to believe and do as part of their religion. Religious groups which have a much looser and more independent approach to doctrine, relying more on individuals and groups to interpret the scriptures, will be less protected from legal cases. This suggests, as I have argued elsewhere, that Equal Opportunity laws can have the counter-intuitive effect of privileging hierarchical authoritarian religions over ones which leave more to the individual's or the congregation's conscience. Non-conformist Christian groups - unless they have highly detailed doctrinal statements - are more likely to lose in complaints because they are less likely to be able to prove that their religion compels them to conform by acting in a particular way. Therefore groups which by their nature allow more religious liberty to their adherents will have less protection under the law from anti-discrimination claims. In this sense the EO law is against religious liberty.

The reasoning of Judge Hampel is further evidence that denominations will come under pressure to apply uniform standards on issues such as homosexual relations – and indeed any issue subject to anti-discrimination provisions – across all groups who come under their doctrinal umbrella. If protection only applies if the doctrine demands particular behaviour, then evidence that a group does not insist on conformity on a particular ethical issue can be used to prove that conformity is not required by the doctrine of the religion. This could put increasing pressure on groups like the Anglicans who currently have a diversity of views on anti-discrimination-related theological issues.

This ruling also has interesting implications for cases where the discrimination is based on religious rather than sexual identity attributes. E.g. is it demanded by Anglican doctrine that a church refuse a booking from a Wiccan group to use the church hall for a social evening? On the basis of the 39 Articles, the Creeds and the Prayer Books, I suspect not. So a parish which refuses such a booking might be breaking the law.

Finally I note that the Equal Opportunity Commission might consider itself entitled to inform Christian groups in future that discrimination in provision of services based upon sexual identity is illegal in the provision of facilities for hire. The Commission could be more entitled now to launch an investigation into provision of services by religious groups, a potential allowed for by the new Victorian law.

There are many things which are unclear from this ruling from Judge Hampel. Whether all her findings will stand remains to be seen. I do not know if CYC Is planning to appeal all or part of the ruling. In any case, this does seem to be a useful indication of which way the winds are blowing for religious liberty in the state of Victoria.

Monday, November 22, 2010

The site http://www.lifevote.org.au/ gives information on which candidates are pro-life, and how to assist them in the state election this Sunday. I encourage those who are concerned about this issue to visit the site and determined which of their local candidates have a track record of voting prolife.

Thursday, November 18, 2010

Abortion is one of the most challenging and troubling moral issues of our times. We should not be surprised, as is the case for most great moral challenges, that there are deep and powerful psychological pressures which work against abortion being openly considered, discussed and named for what it is.

I am convinced that if most Victorians reflected, on the basis of accurate factual information, on what late-term or even mid-term abortion consists of, as an actual medical procedure, from the perspective of the unborn child, they would be repulsed. We do not desire to undergo this dark act of contemplation, so instead we avoid it at all costs. We also banish contemplation of what it does to medical staff who are required to perform 'termination of pregnancy' procedures on a regular basis.

We have found many ways of censoring our thoughts on the subject of abortion.

One way is to accuse those who wish to raise the issue of being disgusting, dishonest, misrepresenters of the truth, fanatics, extremists, or some other cowardly label of abuse. The resistance against having the discussion is so great that it is more convenient to mount an attack against those who would bring the matter to our attention.

The main part of this is fear – fear that we will find ourselves to be barbaric.

Another way of silencing is to banish all concessions to the humanity of the unborn child from our thoughts. This is why Victorian abortion laws make no provision for pain relief for foetuses being aborted – despite evidence that they suffer pain – and we have no law which specifically protects the right to life of an aborted baby who has the misfortune to be born alive. The USA has such a law, brought in as result of evidence that such children were just being left to die – or worse, being killed – in America's hospitals. The censoring of compassion is all about aborting our mental acts – banishing anything from our thoughts which might cause us to look upon the unborn child as a human person. A a result, a newborn kitten has more legal rights in Victoria than an unborn human child: more right to live, more right to protection from physical harm, and simply more right to being treated with dignity.

Another censorship technique is to use the same old linguistic tricks which always cover over the shedding of blood. We prefer not to refer to foetal deaths, let alone killing the unborn, but instead speak of a 'common procedure', to 'terminations of pregnancy', or even more clinically just to "TOPs". Thus we tame with out tongues what our minds refuse to contemplate.

I have found it deeply disturbing that when I rose to speak on this subject at two Melbourne Anglican Synods, I was prevented from speaking each time because members of the synod introduced procedural motions to stop the debate. But I will not be silenced. I will not simply shut up and simply submit to the fact that that my own church has rendered itself officially voiceless on this subject. We Melbourne Anglicans, as a denomination, have blood on our hands. On my hands, if I remain silent. This is why I am writing now. Out of a sense of communal guilt.

The reasons for having the discussion are compelling. We repress them at our moral peril.

In this connection, I have been pondering the legal debates over slavery in American in the nineteenth century. It is striking that the arguments for slavery back then seem so eerily parallel to arguments forabortion today. Augusto Zimmerman has written persuasively on the subject:

In a famous case decided in 1857, the US Supreme Court declared that black people had no human rights and, therefore, were entirely subject to the rights of slave-owners. A century later, in 1973, this very court also decided that unborn children had no human rights and, therefore, were entirely subject to the rights of women. Similarities between both sentences are too obvious to be just ignored. One of the justices who gave his dissenting vote on the abortion case declared quite prophetically: "From now on, women are free to abort for any reason and for no reason at all."

In 1857, the U.S. Supreme Court, in its famous Dred Scott case, defended slavery in these terms: 1) black slaves belong to their masters; 2) black slaves are not human persons before the law; 3) black slaves can only acquire human rights if they become free individuals; 4) those who think slavery is morally wrong do not need to have slaves, but shall not impose their 'personal' opinion upon others; 5) masters have the right to do whatever they want with their property, including black slaves; 6) slavery is better for the black people. Otherwise, they would have to face complex moral choices which their so-called 'inferior' condition not allow them to resolve satisfactorily.

In 1973, the U.S. Supreme Court, in Roe vs. Wade, employed these arguments to decriminalise abortion: 1) unborn children belong to their mothers; 2) unborn children are not human persons before the law; 3) unborn children can only have human rights if they are born alive; 4) those who think abortion is morally wrong do not need to have an abortion, but shall not impose their 'personal' opinion upon others; 5) women have the right to do whatever they want with their property (bodies), which includes unborn children; 6) abortion is better for unwanted and/or disabled children. Otherwise, they would suffer on account of maternal rejection and/or mental and/or physical condition.

As can be seen, the U.S. Supreme Court adopted a similar reasoning in order to decide on both cases of slavery and abortion, with judges denying the moral status of black people and unborn children. If we compare the arguments used by the court to justify slavery and abortion, it becomes clear that unborn children were regarded as the same beings of an inferior order as black people from a century earlier.

The comparison was put movingly by former African-American US presidential candidate Alan Keyes, in a speech given in San Francisco on March 4, 2000:

See, people wonder why it is, Alan, everywhere he goes, he always brings up this issue of abortion. And I never go anywhere without mentioning it. Why? Because abortion is to our time what slavery was to the 19th century. If anyone of conscience went anywhere in the 19th century and did not confront the American people with the evil of slavery, then they were not doing what statesmanship required. Slavery was what discarded and rejected and denied the fundamental principle of right and justice in America. And what was done in the name of slavery then is done for the sake of abortion now. The paradigm of it is quite clear.

What is it that is the argument made in favor of abortion? You can see it in Roe vs. Wade and everything else. It's a privacy argument. And privacy based on what? "Well, this is the woman's body and she has the right to decide what goes on with it." You start from that. And this child, this babe, this fetus in the womb, what is it? "Well, it's a part of her body, utterly dependent on her body, not viable apart from her body. She has, therefore, absolute power over this being, and given that absolute power, she has the absolute right to dispose of it according to her will."

We don't recognize what that's saying. What that's saying is that power makes for right. Might makes for right. If I have you in my power, I may dispose of you and your life according to my will. And if that argument is now accepted and we have embraced it as a fundamental principle of law, then we have rejected the right principle. For, if our most basic and conditional right, the right to life itself, comes to us not from God but from our mother's choice, then there is no human right that transcends in its claim human choice and human power. Abortion is the paradigm – the ultimate paradigm – of despotism, tyranny, oppression, slavery, holocaust.

And I see this all the time. I was down in South Carolina not long ago, and a young lady comes up to me, after I had given a talk just like this, and she says, "I was listening to your speech, and I want to know how come you can prefer the rights of potential persons to those of actual persons." I'll never forget that moment, because she was the very paradigm. If you want to think of some little slip-of-a-thing that projected the very wonderful wholesome air of American womanhood--and she was speaking to me in, what? In the chilling language of holocaust and atrocity. And she didn't even know what she was doing.

I looked at her and I said, "You know, I have a 17-year-old son. How old are you?" And she said, "19." And I said, "You know you make a very rash assumption in what you ask me there," and she looked at me quizzically. And I said, "Because, given my experience with my 17-year-old son, I have to tell you, there are many days on which I'm not entirely sure that people of your age are actual persons at all."

And then to drive the point home even further, I looked at her and I said, "And I hope you don't think that I will hear those words and forget that 120, 130-odd years ago, Frederick Douglass had to go in front of audiences with a speech entitled, 'That the Negro is a man,' to prove that he and others like me were 'actual persons.'"

See, why do people forget this? They speak this cold-blooded language to people like myself, as if we're too stupid to remember that the day before yesterday we were not considered "actual persons," and that if today we deny the principle on which we stood in order to demand respect for our humanity, if we deny it to those human beings in the womb, it will be denied once again to us and to others. Because then it just becomes a matter of who you can get on your side to draw the line between humanity and non-humanity, personhood and non-personhood. And then the majority can oppress, and the powerful can abuse, and those who end up on the wrong side have nothing.

Of this I am convinced, that future generations will look back in horror upon us, and wonder at our callous cruelty. This is how I regard the state of Victoria today, at the present time. On this issue, our moral state is comparable to that of slave owning societies in North America before the civil war. No, it is worse. Their moral crimes resulting in the imprisonment of human beings. Ours result in deaths.

Not for the sake of politeness; nor for the sake of being well thought of by my peers; nor for the sake of avoiding offending the sensibilities of others; nor for the sake of wishing to appear 'moderate' – not for any of these reasons will I remain silent about abortion in this state.

I have put this misinformation ‘into the public domain without proper fact checking’;

I have a ‘tendency to inflate and take liberty with the facts’.

Ms Beaumont has also sent me a letter, which lays out her views in greater detail.

It is disappointing that in launching what amounts to a public attack on my reputation, Women’s Health Victoria has itself put out information containing serious omissions and inaccuracies. These give a misleading impression concerning both the abortion law in Victoria, and statistics for late-term abortions.

1. The Abortion Law Reform Act 2008

One of the claimed inaccuracies concerned a report, published in the Melbourne Age on 7th October 2010, that I had claimed conscientious objection by medical staff was now illegal in Victoria. This comment was reported in the context of the employment of hospital medical staff.

Ms Beaumont alleges that this is inaccurate, on the grounds that:

Section 8 of the Abortion Law Reform Act allows health practitioners to object to abortion.

However a health professional who has a conscientious objection to abortion is required to refer a woman for termination of pregnancy services.

Any conscientious objection to making such a referral ‘does not have merit’.

The Act’s rejection of conscientious objection in relation to referral is ethically correct, because in the context of referral, a woman’s right to make informed choices about her health must take precedence over the conscience of the health practitioner.

In response to this argument, I note first that Ms Beaumont has correctly conceded that it is illegal in the state of Victoria for a health practitioner to object, on grounds of conscience, to referring a woman for abortion services. In this respect, conscientious objection by health practitioners is illegal in Victoria. Ms Beaumont appears to regard this illegality as trivial – she maintains such an objection ‘does not have merit’ – however this value judgment relies upon a contentious ethical opinion about the moral value of abortion, which regards it simply as a decision made by a woman about her own body.

Second, and more importantly, the Section 8 concession to conscientious objection only applies in the case when a woman has requested a health practitioner to advise or treat her in relation to abortion. No such concession exists in the case of hospital staff – such as operating theatre workers – who do not have a direct relationship with the woman. In this context Section 8 is irrelevant, and conscientious objection by health practitioners receives no protection under the Abortion Reform Act 2008.

The comments attributed to me in the Melbourne Age were specifically in relation to hospital health workers. It is therefore disappointing that Ms Beaumont has misrepresented the scope and application of the Abortion Law Reform Act. Nothing in the WHV press release acknowledges that Section 8 of the Act does not apply to hospital health practitioners who have no direct relationship with the patient. This was a significant omission.

2. Government Statistics for Abortion in Victoria

Ms Beaumont stated that “A significant proportion of late-term abortions, including the 52 mentioned in this article, [i.e. in The Melbourne Age, 7th October 2010] are for congenital abnormality.” Based on this observation, she alleges that:

“The minister’s [i.e. Mark Durie’s] comments are not only inaccurate but grossly insensitive both to the health care providers and families involved in late-term abortions for congenital abnormality and the impact this can have.”

The rebuke appears to rely on an implication that late-term abortions in Victoria are primarily for congenital abnormality. This is not true. For example in 2005 there were 129 late-term abortions reported in Victoria for reasons of congenital abnormality, but 180 for ‘psychosocial indications’ (i.e. there was nothing wrong with the baby). The proportion between abortions for congenital abnormalities and psychosocial indications depends upon how late in the pregnancy the abortion takes place, as the following tables show:

It seems reasonable to speculate that the later a baby is aborted, the more likely it will be for psychosocial indications.

The most stable category of late-term abortions is congenital abnormality at 23+ weeks. Presumably this is because testing for congenital abnormalities keeps on getting better, and the resulting abortions are happening earlier as a result.

Victoria has seen explosive growth in late-term abortions for psychosocial indications. This trend was well underway before the Abortion Law Reform Act in 2008, and there has been an indication that it may be continuing.

A Channel 7 news report, aired on 17 April 2010, reported that late-term abortions at the Royal Women’s hospital had allegedly increased six-fold since the Abortion Law Reform Act 2008 was introduced. This has to be considered on top of the previous 400% state wide increase in late-term abortions for psychosocial indications from 2001-2007. While it is impossible to be sure of figures without further information, the combined multiplicative effect of two such reported increases could be an overall 2400% increase in late-term abortions for psychosocial indications within a ten year period. Such a possibility caused me to move that the Melbourne Synod of the Anglican Diocese request a report from the Victorian State Government about the impact of its liberalization of abortion laws. (See my previous blog post).

The Abortion Law Reform Act went into force in late October 2008, so the full impact of Victoria’s liberalization of abortion laws on late-term abortion statistics will only be publicly known when the 2009 report of the Consultative Council on Obstetric and Paediatric Mortality and Morbidity is released. This will presumably be sometime in late 2011 to early 2012. (The 2008 report has not yet been released as of October 2010, and the 2007 report was only released in April 2010).

I deplore the serious omissions and misleading information concerning the application of abortion law which were contained in the Women’s Health Victoria press release.

I repeat my call for the Victorian Government to report to the public on the impact of Abortion Law Reform, and specifically its impact on the frequency of late term abortions in Victoria. I remain deeply concerned about the implications of what appears to be explosive recent growth in late term abortions in Victoria, including the obvious potential of such growth to impact the recruitment and morale of health practitioners in those hospitals which perform late-term abortions.

Last Saturday I had prepared a motion to bring before the Anglican Synod of the Diocese of Melbourne. Unfortunately it was not possible to present the motion. Here is the motion, and an edited version of the speech which I had prepared to present.

=========

The Motion

That this Synod,

a reported six-fold increase in late-term abortions being performed at the Royal Women's Hospital since the introduction of the Abortion Law Reform Bill in October 2008;[1] and

a reported 52 cases in 2007 of late-term abortions (15% of the total in that year) which resulted in babies being born alive;

calls upon the State Government of Victoria to investigate and report to the people of Victoria on the following matters:

How many late-term abortions are being performed in Victoria every week, and at how many weeks gestation?

What are the reasons these abortions are being performed, and in what proportions?

For those babies born alive as a result of a late-term abortion, were the neonates given the medical care at birth which a new born infant would normally be entitled to, and what was their cause of death?

What has been the effect on staff morale of the reported six-fold increase in late-term abortions being performed at the Royal Women's Hospital?

What impact has the reported increase in late-term abortions had on policies for recruitment of staff at the Royal Women's Hospital?

Abortion is a vexed ethical subject. For women who make the choice to have an abortion, it can be one of he most difficult and painful decisions of their lives.

As with all challenging ethical areas of medicine, it is important for the community to be well-informed. This motion is not intended to incite tensions or cause anyone pain. Rather it is a request that the community be informed about what is happening in regard to late-term abortions in this state.

In 2008 the Victorian State Parliament passed an Abortion Law Reform Bill which decriminalized abortion in Victoria. One of the intentions of the reform, according to the Attorney-General, was that current clinical practice in the provision of abortions not be altered. The Attorney-General also stated that the intention in reforming the law was not to lead to more abortions being performed.

However, evidence has emerged that there has been an increase in the numbers of late-term abortions, and this is affecting the practice of abortion provision in Victoria.

A Channel 7 news report, broadcast on 17 April 2010 reported that there had been a six-fold increase in late-term abortions being performed at the Royal Women’s Hospital since the introduction of the 2008 Abortion Law Reform. Presenter Jennifer Keyte said “midwives and doctors feel traumatized” by having to perform so many late-term abortions at the Royal Women’s, and were unhappy that other hospitals were refusing to perform them. Journalist Louise Milligan said that there had been some ‘alarming requests’ for late-term abortions, including, for example, a request for a termination at 32 weeks because the baby had a hare lip

Earlier this year the Consultative Council on Obstetric and Pediatric Mortality and Morbidity published its annual report for 2007, which included a survey of perinatal and neonatal deaths. This report states that in 52 cases terminations of pregnancy due to congenital abnormality resulted in a live birth. In other words the baby died after birth.

It is important that we be sensitive about these tragic situations, and to acknowledge that in many such cases the abnormalities themselves, rather than the abortion, would have been the cause of death of the infant. It can be vitally important to grieving families to hold their live baby before it dies.

This same report reveals that from 2001 to 2007 the number of late-term abortions performed in Victoria for psychosocial reasons – i.e. there was no congenital abnormality – increased from 45 yo 164, an almost four-fold increase. The increase was greater at later stages of pregnancy: in every year from 2002-2007 psychosocial abortions from 23 weeks on took place twice as often (and in some years more than four times as often) as abortions for congenital abnormalities. Some of these late-term psychosocial terminations even took place after 28 weeks.

All this was well before the 2008 liberalization of abortion laws, and the reported six-fold increase in late-term abortions at the Royal Women’s Hospital.

My point in citing these figures is that late terminations of pregnancies appear to have been increasing in number in this state for quite some time. This is a serious matter, which deserves careful consideration. The public needs to be informed about what is happening, and particularly about the impact of the 2008 Abortion law reform, which was intended – according to the Attorney General – to result in no increase in the frequency of abortions.

Some newborns survive an abortion. Gianna Jessen is one such person, who has visited Victoria in the past to speak about her experience. As the numbers of late terminations seems to be increasing, with more and more abortions of viable babies, it is important that the public be informed about what happens in those cases when the baby is actually born alive.

To help show that the problem of late-term abortions resulting in a life birth is not a figment of the imagination, I note that in 2005 the Sunday Times reported a UK Government investigation to consider reports that late-term abortions in the UK were resulting in as many as 50 live-births a year. These cases were not because of congenital abnormalities – the situation already discussed – but because the baby was viable, yet its life had not been terminated before being delivered. I stress however that this was the UK, not Victoria.

Any increase in late-term abortions raises difficult ethical challenges for those hospitals which perform them. It is reasonable to ask, not only for what reasons they are being performed, but what affect does this have on staff recruitment and retention? This relates to the issue of conscientious objection. There is a conscientious objection provision in the Abortion Law Reform Act 2008 for a health practitioner who has been requested by a woman to advise or treat in relation to abortion. However no such provision exists in the case of medical staff – doctors and nurses – who are working in operating theatres in hospitals and have no direct relationship with the women.

The Department of Human Services has written to the Australian Nursing Federation to say that, if a staff member has a conscientious objection based upon religious conviction, there is a provision in Equal Opportunity Legislation that employers are legally obliged to respect such beliefs. However not all conscientious objectors will be working from religious conviction. Indeed it would seem unfair to discriminate against those whose conscientious objection is not faith-based.

The ANF itself has guidelines designed to protect the right of nurses to conscientiously object to procedures and practices to which their conscience is opposed. However, it must be problematic, in a context of increasing numbers of late-term abortions, for a hospital to exempt some staff from participating in certain types of late term abortions, as this will increase the load upon the staff who are willing. Indeed health professionals at the Royal Women’s have reportedly complained about being asked to shoulder a growing burden of these procedures.

Such dynamics must surely also put pressure on the hospital to select staff on the basis of their willingness to participate in late-term abortions. These operations are disliked by many, and the more staff there are who can be exempted, the harder it will be for everyone else.

Fellow members of Synod, these are very painful and difficult issues. But this does not mean we should shy away from them. This motion is a request for information. It does not accuse or condemn. In a context of changing practice, in which late-term abortions are apparently becoming more frequent, it asks that we be fully informed about the impact of this change, including as it relates to the care of the new born, and to the morale and recruitment of medical staff.

Over the past few days I have received moving accounts of the emotional and moral complexities of late-term abortions. There are shades of grey, as one writer said. This motion is a request for light to be shone onto this difficult but highly important ethical issue, out of concern that, for lack of scrutiny, late term abortions have for us in Victoria become very black indeed.

Saturday, September 11, 2010

I was interested to read a report yesterday that the Catholic church in Melbourne had banned footy songs and other secular songs from funerals, and instructed clergy that funerals must not be 'a celebration of the life'. Celebrity priest, Father Bob Mcguire said he though the guidelines were 'insensitive'.

Funerals are complex events. From the perspective of Christian faith, a funeral is a service of worship. As such it includes the three key universal elements of worship: praise of God, hearing the Word of God read and preached, and prayer. The themes of this worship will include reflection on the meaning of life and human mortality, the reality of death and divine judgment, the hope of the resurrection, and looking forward to the second coming of Christ. For some Christians this is an opportunity to pray for the dead person, but not all Christians pray for the dead.

Woven into all such acts of worship there is the ever-present dimension of grief, and the need to assist people to mourn and say goodbye. For believers, the acts of worship themselves are very comforting and helpful. Also, within the worship service which is the funeral, elements which celebrate the departed person's life can assist the process of grieving.

It can be difficult when a family is seeking a religious funeral, but has little appreciation – or even experience – of Christian worship. There can be a real possibility that the acts of worship become overwhelmed by the celebration of the person's life. At worst, the minister can end up acting as the hired religious help, adding a prayer to a wholly secular event. In this sense, I can appreciate the concerns of Archbishop Hart of the Victorian Catholic church. However the risk is that by rejecting all secular, and indeed personal elements in a funeral, the Catholics will alienate people from the ministry of the church.

It is very helpful that Anglican clergy have some some non-negotiable boundaries – one of these is the order of service found in the Prayer Book. When taking funerals we can manage these tensions within the bounds set by the Anglican order of service, which requires a Bible reading, a sermon based on this reading, and prayer. We are required to declare the hope of the resurrection, the inevitability of judgment, and the second coming of Christ. Aspects of celebration and remembrance of the person are focused in the early part of the service and not intertwined throughout the whole ceremony. Nevertheless, in reality every family's situation is different, and the human dimension requires flexibility, and, as Father Bob put it, 'sensitivity'.

Wednesday, August 4, 2010

A day I remember with great vividness was in March 1997. I was in training for the ordained ministry, and had a placement at Lowther Hall Anglican Grammar School in Essendon (a girls school) under the supervision of the Revd Jean Penman. One day at school assembly there was a presentation by the students to celebrate World Women's Day (March 8). One of the students walked onto the stage one minute in a business suit, and the next she appeared as a mother holding a baby. The triumphant message was: "You can have it all!" The idea was that women should expect to be able to combine career and family with great confidence and even ease.

Personally I found the presentation traumatic. I do believe women can do amazing things, as great as any man. They can and they do, all the time. But I knew the message was a false one. Being the father of three young boys (who were 7, 9 and 11 years old), and having watched my male and female colleagues juggling family and work requirements, I knew that virtually no-one can 'have it all'. People have to make hard choices all the time about how they balance work and personal life.

I had also met a number of young adults who were poorly parented by 'absent' fathers who were so devoted to their work they had successful careers but lousy families. Those men hadn't managed to 'have it all'. I felt they should have sacrificed some career achievements for the sake of their children.

I had also found that I couldn't have it all. There were work opportunities I could not take up because of family needs, and family opportunities that went missing because of work. Much of my planning around the years of preparation for ordained ministry had been shaped by a need to make caring for my family my first priority.

At that school assembly, me sense of trauma was for the students themselves, that they would grow up with unrealistic expectations of life, trying to cram too many things in, and getting badly hurt in the process. If they truly believed they could have it all, they might, for example, delay having a family until their late 30's or early 40's, when everything becomes much harder and riskier – including conceiving. On another level, people usually can't 'have it all' because opportunities in life are competitive, and the race goes to the swiftest. It is not true that everyone can win every race, and people need to be able to find happiness without conquering all.

What I saw unfolding on the school stage just looked cruel to me. It seemed to me that the baby boomer teachers, who themselves had certainly not 'had it all' (although teaching is by no means the worst profession for balancing work and family) were pushing their overblown and even hubristic expectations upon the students in their care.

Making life choices can sometimes be incredibly difficult. If you choose A, then you must forgo B. There is a sense of loss, even in choosing one career over another. Training young people to have inflated expectations of life is a form of abuse. They need to be equipped to make carefully thought-through choices, and know how to live with the consequences of their choices with grace and without resentment or a misplaced sense of entitlement.

It is wrong to deny people opportunities or to force them to set their sights lower than they should. It is good to inspire people and encourage them to achieve great things. But being a healthy human being means learning what it means to live within one's limits.

I hope that young women are afforded more dignity and respect these days.

Wednesday, July 28, 2010

On Sunday 18 I was quoted by John Elder, a Melbourne Age journalist, concerning Julia Gillard's faith, or lack of it. Elder gave the impression that my view on Gillard's atheism was rather more negative than it was. As he said to me "much got cut from everyone's remarks".

What I had written to Elder was:

"I think most people of faith recognise that we need leaders who are capable and honest. Just because someone is a Christian, or an adherent of any other faith, doesn't make them a a good leader or even a good person.

There are also prominent examples in the Bible of admired leaders, like Nebuchadnezzar, who were pagans, and both St Paul and St Peter tell Christians to respect authorities (even though they were pagans and were even persecuting Christians).

I don't think the question is really about whether someone believes in something or nothing. It's about what the person actually believes in, as much as the fact that they believe in ANYTHING. ...

It does depend a lot on what you think of the religion itself. Some would be nervous about a Muslim prime minister, because many see Islam as a political system, and they would fear that the leader's faith will end up directing policy to reshape society towards the Islamic sharia.

Differences between religions aside, there is a monumental struggle of values going on in society between a purely materialistic view of the human person on the one hand — for which the philosopher Peter Singer has become the favourite pinup boy — and views which take the dignity of the human person as a God-given, and an absolutely non-negotiable value to be protected at all costs. Singer's ethics, which have become embedded in the policies of the Greens, could take humanity into some very dark places indeed. We are seeing this unfolding already.

If you believe we are all just lumps of dirt, the result of a series of evolutionary accidents, of course this affects how you value the dying, the unborn, the disabled, the environment, human sexuality and marriage.

Pure materialism will inevitably undermine human rights and erode justice, reducing the worth of people to what they produce or consume. We saw this very clearly in the bitter fruits of Marxist atheism, which treated human lives as the raw material for political progress. In the name of such 'progress', millions of lives were cruelly degraded and destroyed.

The big question in my mind about Julia Gillard is not the fact that she is an atheist, but what kind of atheism does she stand for? Will she stand up for and defend values which ultimately are based on Biblical ethical foundations, such as marriage, the right to life and the equality of all people before the law? Or will she march to the drumbeat of pure materialism?

The home values which have formed our Prime Minister – and which she has emphasised in her speeches – include hard work, the value of an education, optimism, and respect for others (that is, not thinking of yourself as superior to others, no matter what their attributes). These are good values, but what are they based upon? They sound a lot like the product of the Welsh protestant revival of a century ago, which reformed Welsh society, shutting pubs all over the country, and improving the lot of many. Such values as a protestant work ethic and the dignity of the human person, inherited from our forebears, are the fruits of the faith of preceding generations.

But the question is what legacy will Julia pass on to future generations, because even good values, if disconnected from their moorings in faith, do not easily or automatically replicate themselves. They can even be dangerous. An evil person can do a lot of damage through hard work and a good education.

These days the aggressive drumbeat of atheistic materialism sounds enticing and compelling for many. What I do not know is whether Julia Gillard is going to march in step with this increasingly confident beat, or will she more or less hold to the values of the Welsh Christian soil from which she grew but has now become disconnected.

So yes, I am uneasy about Julia. But what her legacy will be, only time will tell."

I have had a few interesting responses from atheists to The Age article. One person wrote respectfully asking whether my comments, as quoted, were taken in or out of context. An email conversation ensued, and we could agree on many things.

Someone else wrote what could best be described as hate mail. Some atheists assume that if you have faith, you must be a) an idiot b) a bigot, or c) both. This sentiment is deeply held by more than a few in Australia. I am troubled by the intensity of this hatred which a minority of atheists seems to hold towards people with different views from their own.

I do remain curious about Julia Gillard's world view. What are her foundational values and beliefs – apart from derivative motherhood values like hard work, respect for others and optimism? Upon what fundamental assumptions or presuppositions does she base her take on the meaning of life?

Take respect for others, for example. Julia Gillard regards this as a Good Thing. People can adopt this as a foundational principle of their own personal life-journey, but as a value, it is normally something secondary, which is based upon other beliefs. For example many Christians base this belief upon the idea that all people are made in the image of God, and so they share a universal dignity and worth, no matter what their race, ethnicity, language, religion, wealth or capabilities may be. I can see how a materialistic world view could produce different conclusions. For example, if you wanted to argue that it is our capacity for cognition which is the basis of human dignity (by this view a whale would have more worth than a snail because the whale is more intelligent) then you might conclude that an unborn foetus or a intellectually disabled person has less inherent worth as a human being than Mr or Ms Jo(e) Average. Abortion and euthanasia of the disabled might appear more reasonable to someone who evaluates human dignity in terms of the capacity for cognition.

What does our Prime Minister think about the meaning of life? This is a question I'd be keen to have answers for from any politician, but I'm particularly curious to know more about Julia's world view.

However, I'm not holding my breath to have deeper questions answered this side of the election.

Monday, June 14, 2010

Zondervan, 2010. (Available in Australia at Koorong Books)
Review by Bill Muehlenberg, from CultureWatch
Atheist Christopher Hitchens has just released his memoirs, which has generated a lot of interest. His brother Peter has also released his story, but much of the media seems uninterested in the book. Perhaps it is because Peter has moved on from atheism to Christianity.
A largely secular mainstream media just does not know what to make of such conversions. It is happy to promote Christopher’s rage against God, but less willing to push a book which repudiates atheism and celebrates God’s existence.
In this brief volume Peter recounts his early turn toward atheism, and his later turn back to God. In it he also takes on the ongoing atheism of his brother. Although this is certainly a case of a house divided, it is not a polemical attack on his sibling’s unbelief, but a plea for some realism and rationality in this important debate.
The first half of the book recounts his own story, and how he became a devout atheist and Marxist in his teenage years. His story is in part a mirror image of what happened to Britain. From a great nation it has faded into obscurity, with a loss of saving faith and a loss of face-saving.
He tells how his generation largely abandoned religion, preferring instead the supposed liberation of atheism. He mentions how for twenty years he hardly ever met a religious person, and how all his peers shared in his unbelief. He is honest enough to admit that his rage against God was all about the elevation of self and hedonism.
He quotes a character in a Somerset Maugham novel: “He could breathe more freely in a lighter air. He was responsible only to himself for the things he did. Freedom! He was his own master at last.” This was the joy of his new-found atheism.
His experience of freedom was really antinomianism. Says Hitchens, “There were no more external, absolute rules. The supposed foundation of every ordinance, regulation, law, and maxim … was a fake.” He continues, “I did not have to do anything that I did not want to do, ever again. . . . I could behave as I wished, without fear of eternal consequences.”
This ‘liberation’ from moral law was supposed to mean freedom, but as he explains, all he did was move into bondage of self and sin. He went on a bender, indulging in debauched and debased rebellion. Shaking his fist at God meant living like a totally self- absorbed hedonist.
His story is the story of countless post-war Englishmen. A large abandonment of religion was coupled with a wholesale embrace of sensuality, irresponsibility and selfishness. The radical rebellion of the 60s was simply the fruit of this widespread rejection of God, authority and law.
But just as I too was once a part of this counter-culture, and now I look back in shame and despair at what I helped to unleash, so too Hitchens. He recalls his path back to God, and how he now regrets the libertinism and nihilism that his generation inflicted upon a once great nation.
He notes how his peers saw his return to God as incredulous, inexplicable. A person today can embrace any cause and engage in any activity, and we are supposed to celebrate this. But dare to affirm the Christian faith, and all hell breaks loose.
When he was a Trotskyite, celebrating the tyranny of Soviet Communism, he was seen as clever, hip and cool. But now that he realises what an abysmal police state the Marxist vision really was, and how a return to God is our only real hope of freedom and meaning, he is treated as a pariah and outcaste.
And of course his famous brother is one of these voices of misotheistic hatred. Blaming religion for all our ills is a reckless and foolhardy charge to make, but the atheist fundamentalists do not bother with actually making this case with hard evidence.
Indeed, as Peter shows, the atheistic regimes of the last century have been the real sources of death, bloodshed and barbarism. Yet his atheist brother cannot bring himself to see this. Thus Peter spends a number of chapters recounting the horrors of atheistic communism, and the dystopian brave new world that was the Soviet Union.
And he notes that all secular utopians must end up in the same way. By seeking to bring heaven to earth and create the new man, but without the help of the only one who can make this possible, we only end up enslaving ourselves. And that is why the secularists so hate Christianity.
They know it is the one thing that stands in the way of their coercive utopianism. Says Hitchens, “The Christian religion has become the principle obstacle to the desire of earthly utopians for absolute power.” Indeed, because he lived in the Soviet Union for several years, he witnessed firsthand the cruelty and ugliness of state-enforced utopianism.
And he sees it all happening again in England and the West. As we abandon God and moral absolutes, the raw power of the state emerges. The vacuum created by the dethroning of God does not last long. It is soon filled by false claimants to the throne.
“Only one reliable force stands in the way of the power of the strong over the weak. Only one reliable force forms the foundation of the concept of rule of law. Only one reliable force restrains the hand of the man of power.” It is Christianity which offers a check against this power-worship, and acts as a brake on the rush toward the deification of man and state.
And Hitchens demonstrates how so many atheists are at the same time strident leftists. The dictatorships of last century clearly confirm this, but it continues unabated today. “God is the leftists’ chief rival. Christian belief, by subjecting all men to divine authority and by asserting in the words, ‘My kingdom is not of this world’ that the ideal society does not exist in this life, is the most coherent and potent obstacle to secular utopianism.”
With the widespread rejection of Christianity, all we have left is the power-hungry Muslims and the power-hungry leftists battling for supremacy. Both reject the message of Jesus as they seek to pursue their power grabs. Indeed, the “Bible angers and frustrates those who believe that the pursuit of a perfect society justifies the quest for absolute power.”
Peter is amazed that his brother has not yet grasped that “Utopia can only ever be approached across a sea of blood” and that “Atheist states have a consistent tendency to commit mass murders in the name of the greater good”. Indeed, “terror and slaughter are inherent in utopian materialist revolutionary movements”.
Hitchens concludes his book by mentioning a public debate he had with his atheist brother in 2008. He was pleased that it remained a rather civil affair, but his brother shows no signs of abandoning his atheistic faith. Yet he takes some hope: Christopher has abandoned his chain-smoking, which in itself seems to be quite a miracle.
If he can make this move, then perhaps he can also make a move concerning the object of his faith and devotion. Peter has made such a move, with telling results, and it is hoped that his brother will as well. In the meantime, what we have here is yet another atheist who has bit the dust.
There has been a steady stream of such conversions out of unbelief. Undoubtedly many more are yet to come. And as a result, many more books such as this will emerge. He concludes with these words: “On this my brother and I agree: that independence of mind is immensely precious, and that we should try to tell the truth in clear English even if we are disliked for doing so.”
Peter has certainly done that here, and his atheist detractors will as usual unleash their venom and hatred on him for daring to think independently, and for his apostasy from the religion of militant atheism. Well done Peter. We await your brother following suit.

Thursday, May 27, 2010

This is one of the more 'unusual' stories in the New Testament. On the Day of Pentecost (Shavuot), the Holy Spirit comes upon 120 of Christ's disciples gathered in Jerusalem, and they spontaneously begin praising God. What is remarkable is that all the people in the streets around hear this praise coming out in their own native languages - and these bystanders were from all over the Roman Empire, Jews come to celebrate Pentecost in Jerusalem, who spoke a multiplicity of languages.

What is the meaning or significance of these 'other languages', also referred to as glossalalia and speaking in tongues? Peter's sermon at the time says this fulfils a prophecy in Joel that your 'sons and daughters will prophesy' (Joel 2:28-32). Presumably this just means that the words the disciples were uttering were given them by the Holy Spirit. This was not prophecy as in 'foretelling the future' or prophesy as a word of rebuke to the nation or a call to justice. The words God gave were pure praise.

Some have suggested these 'other languages' were a kind of missionary gift: a marvellous short cut to language proficiency. C.T. Stud was an English cricketer who played at the 1882 test match with Australia which gave rise to the 'Ashes'. Studd became a missionary to China as one of the 'Cambridge Seven' (see photo). These young men all went out as missionaries after studying at Cambridge. Studd prayed for a supernatural gift of being able to speak Mandarin Chinese, on the model of Acts 2, but ended up having to follow the usual laborious route of language study!

No-one takes this interpretation seriously today. There is no suggestion in the New Testament that people were given additional language skills, e.g that when Paul speaks of speaking in other languages, what he meant was that he had an additional language to use in his preaching. In fact there is no evidence even on Pentecost day that the disciples understood what they were saying – the miracle was reported to be in the ears of the listeners, who recognized their own languages come from the disciples' mouths.

Another explanation is that the languages were a kind of mending of Babel: instead of speech being confused after Babel into a multiplicity of mutually incomprehensible languages, God was removing language barriers. This is a repair of the effects of sin, a kind of eschatalogical healing of the world. However the focus in Acts 2 is not on people communicating with each other. Rather the disciples are crying out praise TO GOD – who would understand them anyway. The others who just happened to be listening in were – completely unexpectedly – able to understand what they were saying in their own native languages.

Another explanation of the languages links them to a Jewish belief that at the giving of the law on Mt Sinai (celebrated at Pentecost), God's voice was heard in 70 languages. This was believed to be the total number of the world's languages (actually there are thousands). If God spoke on Mt Sinai in multiple languages all at once - because the law was given for all the nations – then it would be no surprise when the Spirit came on the Day of Pentecost of Luke 2, that the Spirit's voice was also heard in all known languages.

The interpretation I prefer is that the 'other languages' represent a renewal of creation. The truest and ultimate purpose of the gift of speech is to praise God. Sadly human beings use this gift for much baser purposes, such as slander, cursing and telling lies. However Psalm 2 states that God ordains praise from the mouths of infants and babies (Psalm 8:2). In the book of Revelation, the vision of the heavenly city has God's people speaking – in praise and worship to God. The gift of other languages on Pentecost was an in-breaking of this eschatalogical purpose for human language. It was God 'ordaining praise' and renewing the purpose of speech.

In both the New Testament and contemporary experience, the phenomenon of 'other languages' is associated with two functions. One is spontaneous praise, rather like the accounts of Acts (Chapters 2, 10 and 19). The other is prayer, which is more in focus in Paul's writings. Such prayer is also a manifestation of the Spirit's voice, as God himself prays through us (Romans 8:26).

Both praise and prayer are God-directed speech acts, and are also described in the Bible as God-breathed. By this line of thinking, the 'other languages' of the New Testament represent an in-breaking of God's future, through the renewal of language as an anticipation of God's future renewal of all creation. This manifestation is an example of what the writer to the Hebrews calls a foretaste of heaven and the powers of the age to come (Hebrews 6:4-5).

For more on this subject, and last Sunday's sermon on the pentecostal manifestation of 'other languages', see the audio recording at Tongues of Fire.

Saturday, April 17, 2010

This Thursday the Equal Opportunity Bill 2010 passed through the upper house of Victoria's Parliament, the Legislative Council. It has now passed into law. The following day I read some of the Upper House speeches with particular interest. Members of the Legislative Council reported that they had received thousands of submissions from members of the public who were concerned about the new Bill.

The major focus of public concern has been whether Christian organizations will be able to employ like-minded people to their organizations, for example: Can a Christian school favour Christians when filling teaching staff vacancies? Can a Christian aid agency favour Christians in senior management roles?

The issue is particularly pointed for Christian schools, because thousands of students in Victoria attend schools where up until now every member of staff has been required to adhere to religious and ethical principles as part of their employment contract. Tens of thousands more attend schools where there has been a tradition of favouring teachers who share the religious and ethical values of the school. Since the passing of this new bill, it is unclear whether these employment arrangements have now become unsustainable.

The crux of the controversy is just a few paragraphs relating to employment, which mean that a religious organization can discriminate on any grounds at all in employing someone if

a) "conformity with the doctrines, beliefs or principles of the religion is an inherent requirement of the particular position," and
b) the person's "religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity means that he or she does not meet that inherent requirement."

This means that if someone does not meet a religious test related to the position – defined in terms of 'inherent requirements – they will have no protection from discrimination.

Something about this puzzles me greatly. Let me explain. If being a Catholic is an 'inherent requirement' of a position, and someone occupying the position renounces Catholicism, then the employer could discriminate against this person on the basis of their age, or physical impairment, or indeed any other attribute. This seems unfair. As another example, if being a Buddhist is an inherent requirement of a particular position, but parental status is not, then a Muslim single mother who happened to occupy the position could be discriminated against on the grounds of her parental status, but a Buddhist woman in the same position would have full protection from discrimination on grounds of parental status.

I expect that the Government intended something else. They probably meant that discrimination would be allowed on the basis of the attribute which caused the person not to meet the inherent requirement of the position. Unfortunately, this is not how the law has been written.

However the reason for the general public's sense of alarm over the law is not the issue I have just raised of clumsy drafting, but that the 'inherent requirement' test will be interpreted narrowly by our courts, and in a very secular way.

An 'inherent requirement' of a position is a core essential component. The concept of 'inherent requirements' developed in relation to accommodating people with disabilities. Someone with an impairment might need to do a task in a different way, but the important thing is whether they can do the task, not how they do it.

Disabilities are one thing. What is really very unclear is how the concept of 'inherent requirements' will be extended to religious requirements of positions. In the Legislative Council speeches there seemed to be confusion around this subject. For example Labor Member, Mr Johan Scheffer, speaking in favour of the Bill, confusingly stated that:

Where a religious body or school wishes to discriminate in the employment of a person on the basis of the person’s conformity with the relevant religious doctrines or their religious belief, sexual orientation, marital status or gender, they will be required to demonstrate that the basis of the discrimination is an inherent requirement of the religion.

This is not correct. The test is not whether the basis of the discrimination is an inherent requirement of the religion, but whether it is an inherent requirement of the position.

The problem is, no-one really knows what this will mean in practice. I have had some interesting conversations with a lawyer friend who is confident that:

If there is clear evidence that the way in which a school or church group is conducted is genuinely informed by faith-based principles on the sanctity of marriage or some other matter, so that those values are taught by maths teachers as well as religious studies teachers, then I don’t see why we need worry that they would be found to be unlawful if they insisted on such matters in their employees.

The multi-million dollar question here is what does 'taught' mean? Does it mean, for example, that if a school wants to employ teachers who believe the Nicene Creed, that this will only be possible if the mathematics or chemistry teachers actually 'teach' the Nicene Creed as a formal part of the mathematics or chemistry curriculum? If a school wishes to prefer to employ Christian teachers, must they make every teacher a religious education teacher?

I paid particularly careful attention to the statements of Mr Brian Tee, Labor party member of the Legistlative Council:

... what it demands is a degree of transparency and a degree of accountability. What it says is that if you are going to discriminate on those grounds, then that discrimination must be justified or must be in conformity with the religion, and it must be an inherent requirement of the job. So if we are going to allow a school to deny a job to a woman, to a mother, to a wife, then I think that discrimination should have been justified by reference to the nature of the job and by reference to the religious doctrine.

If you are going to deny someone a job because they are gay, if you are going to deny them that opportunity, then what the bill does is say you need to demonstrate that that decision is made in accordance with the religious doctrine; and the nature of the employment means that the person is not suitable.

Talk about having it both ways. This is quite clever. Those who are concerned about being discriminated against – for example gay people or single mothers – will hear that this can only happen if it is justified because the nature of the employment means they are unsuitable for the work. How attractive this sounds! On the other hand the religious employer is meant to hear that discrimination will be possible if it is justified by their religious beliefs. Again, how attractive this sounds!

The difficulty arises that people do not agree on what is justified. Both sides will have their hopes raised by this law. But no-one really knows whether a Muslim school will be able favour Muslims in employing its VCE mathematics or science teachers. In the end, the courts will have to decide, and because their decision will be contingent on the particular doctrines, beliefs and principles of the school, the courts will have to decide on a case-by-case basis.

This will not be easy. In each case, at least three doctrinal issues will need to be resolved

The first doctrinal issue will be to determine what is 'the religion' of the organisation. For a Catholic body this will be straightforward, but for many Christian agencies it could be quite difficult. One can think of a recent case involving the Wesleyan Mission in Sydney (in relation to gender identity discrimination). At first the courts decided the religion was 'Uniting Church', but the Appelate Tribunal decided that the religion was 'Wesleyanism' [(Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 (1 October 2009]. If an evangelical Anglican parish is taken to VCAT, will the religion be 'Anglican' or 'Evangelical Anglican'? And what about parachurch agencies, with no denominational identity. What will 'the religion' be in these cases? 'Vanilla Christian?'

The second doctrinal issue will be what are the 'doctrines, beliefs or principles' of 'the religion' as they apply to "religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity". Again, the Catholics will do well on this one. They have a detailed catechism which dots every i and crosses every t. But for some 'religions' this will be a big ask. I say - good luck to them! A lot of people will be interested to discover from our courts' rulings what is the doctrinally correct Anglican, Baptist, Unity Church or Lutheran position on gay marriage.

The third doctrinal issue will be whether faith-related attributes are an 'inherent requirement' of the particular position. A key question will be to what extent the religious doctrines, beliefs and principles of the organization can impinge upon the 'inherent requirements'. Is the religious character of an organization enough to justify the claim that employees should be religious too?

I am grateful to Cameron Macaulay for drawing to my attention a case where the right of the Army to discharge an HIV positive soldier was upheld (McHugh J in X v Commonwealth [1999] HCA 63; 200 CLR 177 at [31] ff). The ruling includes some relevant comments about the importance of context in determining inherent requirements of positions:

31. Whether something is an "inherent requirement" of a particular employment for the purposes of the Act depends on whether it was an "essential element" of the particular employment[24]. However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. Thus, implied in every contract of employment are obligations of fidelity and good faith on the part of the employee[25] with the result that an employee breaches those requirements or obligations when he or she discloses confidential information[26] or reveals secret processes[27]. Furthermore, it is an implied warranty of every contract of employment that the employee possesses and will exercise reasonable care and skill in carrying out the employment[28]. These obligations and warranties are inherent requirements of every employment. If for any reason - mental, physical or emotional - the employee is unable to carry them out, an otherwise unlawful discrimination may be protected by the provisions of s 15(4).

32. Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely "so obvious that it goes without saying"[29] - which is one of the tests for implying a term in a contract to give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment[30]. It is but a particular application of the implied warranty that the employee is able to and will exercise reasonable care and skill in carrying out his or her duties[31].

33. It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context. Unstated, but legitimate, employment requirements may stem from this context. It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment.

34. So much was recognised by this Court in Qantas Airways Ltd v Christie[32]. Although at age 60, Mr Christie undoubtedly still had the physical ability to fly 747's, the age limit of 60 imposed by other countries on pilots in their air space meant that, if Mr Christie were to be continued to be employed by Qantas, he could only be assigned to a restricted number of routes - a situation which would cause great disruption to, and perhaps the ultimate failure of, Qantas' roster system for assigning pilots to routes. In this context, the Court held that Mr Christie was unable to carry out an inherent requirement of his position, namely, the capacity to fly to all (or at least a reasonable number) of Qantas' international destinations. I said[33]:

"It was plainly an 'inherent requirement' of the position of such a Captain that he or she should have the capacity (physically, mentally and legally) to fly B747-400 flights to any part of the world. That was an indispensable requirement of the position."

35. Christie stands for the proposition that the legal capacity to perform the employment tasks is, or at all events can be, an inherent requirement of employment. It shows that in determining what the inherent requirements of a particular employment are, it is necessary to take into account the surrounding context of the employment and not merely the physical capability of the employee to perform a task unless by statute or agreement that context is to be excluded. Far from rejecting the use of such context, s 15(4) by referring to "past training, qualifications and experience ... and all other relevant factors", confirms that the inherent requirements of a particular employment go beyond the physical capacity to perform the employment.

There is a paragraph in the new Bill which appears to strengthen religious organizations' ability to invoke this idea of context being part of 'inherent requirements':

(4) The nature of the religious body and the religious doctrines, beliefs or principles in accordance with which it is conducted must be taken into account in determining what is an inherent requirement for the purposes of subsection (3).

However, even if the religious nature of a body is taken into account, this is not going to ensure that religious principles will take priority in determining what is an inherent requirement.

In any case, resolving this will ultimately require a ruling on doctrine. A relevant theological question might be: for a Christian, is teaching mathematics an act of worship?

I am put in mind of a recent case in the UK where the Master of the Rolls, Lord Neuberger, ruled that requiring a Christian Islington registrar, Ms Lillian Ladele, to officiate at same-sex civil partnership registrations did not in any way interfere with her 'worship' as a Christian: "the effect on Ms Ladele of implementing the policy [of requiring her to officiate at civil partnerships] did not impinge on her religious beliefs: she remained free to hold those beliefs, and free to worship as she wished." Lord Neubergerdecided that Ms Ladele's Christian view of marriage was "not a core part of her religion, and Islington's requirement in no way prevented her from worshipping as she wished."

The former Archbishop of Canterbury, Lord Carey, has objected to Lord Neuberger's 'disparaging' presumption that Ms Ladele's view on marriage was 'not a core part of her religion', and has asked that Lord Neuberger, together with other judges who hold similar views, excuse themselves from further cases to do with religious liberty. It is extraordinary that a former Archbishop of Canterbury has lost confidence in some of Britain's most senior judges: the judges believe they are giving fair and impartial rulings, but prominent British church leaders believe they are irredeemably biased against Christians.

The theological issue which Lord Neuberger was addressing is what constitutes the 'core' of religious devotion: what determines the boundary between worship and the rest of life. For a secular person, teaching mathematics has nothing to do with religion. However, for a religious person – and indeed for a religious organisation – all actions can be considered to be worship. What distinguishes many relgious organisations is that they see their whole activity as a corporate act of worship, done in devotion and service to God, in accordance with the doctrines and principles of their faith. One reason they want to employ people of faith is that they want the whole organisation to corporately serve God through its activities. The secular judges regard faith as an essentially personal and individual affair, and cannot understand this perspective because their religious worldview cannot comprehend it.

This same theological issue was emphasized in a recent submission from the Standing Committee of General Synod of the Anglican Church of Australia, entitled 'Freedom of Religion and Belief in the 21st Century' submission. The Anglican submission responded to a proposal made in the Australian report Article 18: Freedom of Religion and Belief that:

4.1.1. A distinction, exclusion or preference in respect of a particular job based on the inherent requirements of the job should not be unlawful. Preference in employment for a person holding a particular religious or other belief will not amount to discrimination if established to be a genuine occupational qualification.

In response, the Anglican submission stated:

In many religious contexts (including congregations, schools, missionary organisations and other charitable organisations), R.4.1.1 is not meaningful or relevant. In these organisations there is no distinction between those positions where religious belief is a 'genuine occupational qualification', and other positions. The attempt to make such a distinction is not meaningful because:

i. These organizations may seek to maintain their distinctively religious mission, and avoid loss of effectiveness, by employing people throughout the organisation who adhere to the religious purposes, and hold the religious beliefs, of the organisation.

ii. For Christian organisations, all action is done 'to the glory of God'. This makes it impossible to distinguish between specifically religious activity and other activities.

Clearly the Victorian Labor government disagrees, for it has chosen to make rely upon the 'inherent requirements' distinction, which the Anglicans had declared to be 'not meaningful or relevant'.

I believe, without a shadow of doubt, that both the Victorian Civil and Administrative Tribunal, and higher courts of appeal will have great difficulty ruling on the three doctrinal questions which must be resolved in order to apply an 'inherent requirements' test. Despite the Victorian Government's blasé confidence that actions which are 'justified' will be protected by the law, determining what is in fact 'justified' will require complex theological rulings to be made by secular courts.

I am particularly concerned about one specific implication of the new Bill in relation to employment.

This is that the concept of 'inherent requirement' is an all-or-nothing thing. Either an attribute is an 'inherent requirement', in which case discrimination MUST be applied – for a person with the 'wrong' attribute(s) would by definition be unable to do the job, or it is not an inherent requirement, in which case discrimination will be forbidden.

This means an organisation must always discriminate or not at all. What will be illegal will be to prefer Christians for positions in Christian organisations.

When I was a student at a Christian high school, I observed that the principal employed a considerable number of Christians to teaching positions. Indeed the Physics teacher, English teacher and French teacher were all ordained ministers. Under the new Victorian Equal Opportunity Law, if the principal wanted to discriminate in favour of a Christian teacher, the only way he or she could do this would be by declaring faith to be an 'inherent requirement' of the position. But this would make it very difficult for the school to employ non-Christians, as they would not meet this 'inherent requirement'. The idea of maintaining a balance, where some, but not all, of the teachers are Christians, would be ruled out.

This outcome seems to be an extreme one, which is intolerant of the realities of how religious organisations actually function. It will force a kind of ghettoization of religious institutions. In order to maintain their religious identity, they will need to be 100% religious in their staffing practices, or have no religious employment preferences at all.

Clearly religious rights cannot simply trump all other rights. Some religious practices are illegal and should always remain so. But what the past decade of watching Victoria's attempts to regulate religious manifestations has convinced me of – first through the lamentable outcome of the Racial and Religious Tolerance Act 2001, and now through the Equal Opportunity Bill 2010 – is that the Victorian Labor Government has little clue about the problems inherent in requiring our secular tribunals and courts to rule on doctrinal issues. There is a desire that religious bodies and individuals be more accountable, but little clue about how to do this efficiently and effectively.

In watching all this unfold, the weak response of churches to these threats to religious harmony has been, to say the least, disappointing.

If the Equal Opportunity Bill is as bad as I believe, then possibly the very best thing that can happen now is for a series of high profile Equal Opportunity cases to be started up, making use of the new religious provisions, which pit secularist-minded complainants against religious respondents. The doctrinal issues will prove to be controversial and divisive, even within religious communities, and the public will be divided as the cases progress through the inevitable appeal processes. The problem of conflicting and irreconcilable presuppositions about the role of religion in life will cause the government to founder on the shoals of controversy and outrage, as both sides discover that the law has not provided the legal clarity which everyone had hoped for.